Tracy v. Martin

• Decision Date: 15 May 1951
• Docket Number: 27890,Nos. 27889,s. 27889
• Citation: 239 S.W.2d 567
• Parties: TRACY et al. v. MARTIN et al.
• Court: Missouri Court of Appeals

Page 567

239 S.W.2d 567

TRACY et al. v. MARTIN et al.

Nos. 27889, 27890.

St. Louis Court of Appeals, Missouri.

May 15, 1951.

Motion for Rehearing, for Modification or for Transfer to

Supreme Court Denied June 13, 1951.

Walther, Hecker, Walther & Barnard, William J. O'Herin, St. Louis, for Walter L. Roos, intervenor-appellant.

J. L. London, St. Louis, for appellant Tracy.

Forrest M. Hemker, Willson, Cunningham & McClellan, St. Louis, for respondent.

HOUSER, Commissioner.

This is an appeal from a judgment of the circuit court (a) allowing Richard D. Gunn a fee of $1,800 for services performed as guardian ad litem for Elizabeth Martin, a minor, in the defense of an equity suit to cancel a trust indenture and quiet title to real estate and (b) charging the estate of Elizabeth S. Delany, non compos mentis, with the payment thereof. The facts which gave rise to the litigation are fully reviewed in the opinion of Tracy v. Sluggett, 360 Mo. 1120, 232 S.W.2d 926, and need not be repeated here.

Plaintiff Edwin F. Tracy and intervenor Walter L. Roos, guardian of the person and estate of Elizabeth S. Delany, appeal on this offshoot of that litigation on two grounds: (1) that the circuit court erred in charging the allowance against the estate of Elizabeth S. Delany, and (2) that the allowance is excessive.

A guardian ad litem is entitled to an allowance for his services in representing a minor defendant. Walton v. Yore, 58 Mo.App. 562; Jones v. Yore, 142 Mo. 38, 43 S.W. 384. If the infant has an estate the guardian ad litem may be compensated from this source, because such representation is a necessary. Nagel v. Schilling, 14 Mo.App. 576. If no estate exists the amount of the allowance should be fixed by the court which appointed him, and in certain instances assessed as costs in the case.

If the services were rendered in a suit at law the allowance may be taxed as costs only against the unsuccessful litigants because of R.S.Mo.1949, Sec. 514.060, which provides: 'In all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law.'

If the services were rendered in a suit in equity the court may assess and tax guardian ad litem fees in its sound discretion, even against successful parties litigant in certain circumstances. This discretion, however, may not be arbitrary or capricious but must be a legal discretion guided by sound equitable principles considered in the light of each particular case. Even in equity cases the general rule is that the prevailing party is entitled to his costs, and in order to depart from the general rule the circumstances must reveal some justification in equity and good conscience, otherwise there is manifest abuse of discretion. Oldham v. McKay, 235 Mo.App. 348, 138 S.W.2d 735. The court's discretion, both in fixing the amount of the allowance and in determining which of the parties litigant shall be required to pay the allowance, will not be disturbed unless it has been abused. Holy Ghost Ass'n v. Fehlig, 72 Mo.App. 473; Oldham v. McKay, supra.

Appellants argue that Walter L. Roos, guardian of the person and estate of Elizabeth S. Delany, was a successful party in this litigation; that consequently the trial court had no authority to tax the allowance as costs against the estate, and that to compel the estate to pay for legal services rendered in behalf of a person who has wrongfully attempted to establish an interest therein is contrary to all principles of equitable relief, and dangerous.

Respondent takes the position that the appointment of a guardian ad litem for an indispensable infant defendant is a mandatory requirement to a valid judgment; that the statutes allowing the prevailing party to recover his costs do not apply in equity suits; that it was the duty of the guardian ad litem diligently to represent his infant ward in court, and that where there is a fund in court, as here, and the infant has no estate, the court which appoints the guardian ad litem may charge the allowance against the fund.

Often in equity cases in which there is a fund or estate in the custody of the court, the officers of the court, including guardians ad litem and attorneys at law, are paid out of the fund for their services in the litigation. Respondent lays heavy emphasis upon the fact that there is an estate in court, claiming in his brief that 'when there is no other source from which the court can compensate an indispensable guardian ad litem who is acting as an officer of the court pursuant to the court's appointment, * * * it is a necessary and proper exercise of equitable jurisdiction to require that the guardian ad litem be paid out of the fund in the court's custody irrespective of whether the infant's interest was antagonistic and irrespective of whether the infant was a prevailing party or not.'

The mere existence of a fund, however, does not in and of itself authorize resort thereto to defray costs and expenses of litigation. The facts and circumstances of each case must be considered in determining whether the fund must be made to respond to the claims of a guardian ad litem or any other court officer. Examples: (1) a guardian ad litem will be denied compensation out of the fund (a) if he has enjoyed a substantial recovery in the course of the litigation. In such case he should pay for the services of the guardian ad litem out of his recovery. St. Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578. (b) Where the interest of the ward in the fund was purely contingent. Drake v. Crane, 66 Mo.App. 495.

(2) An attorney will be denied compensation out of the fund (a) where the purpose of the suit is to destroy the estate. Thatcher v. Lewis, 335 Mo. 1130, 76 S.W.2d 677; Sandusky v. Sandusky, 265 Mo. 219, 177 S.W. 390; Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104. In the Sandusky case, in a suit against a testator's heirs to determine rights under the will, the heirs made no claim under the will, or in harmony with it, but claimed that certain charitable bequests therein were invalid, and that they were entitled to the property which was the subject matter of the bequests. In denying the heirs their counsel fees out of the fund the court said, 177 S.W. loc. cit. 395: 'There is no equity in requiring the trust fund to remunerate those whose sole claim to consideration is the fact that they endeavored to destroy that fund.' In the Trautz case the administrator pendente lite contended that the trust was void as against the rule against perpetuities. He was denied attorneys' fees out of the fund, in this language, 72 S.W.2d loc. cit. 108:

'* * * the trust estate would not have received any benefit, in fact, the trust estate would have been destroyed (by the action of the attorneys). * * *

'We hold that the position of the administrator pendente lite * * * was antagonistic to that of the trust and the trial court erred in sustaining the administrators' motion for attorneys to be paid out of the trust fund.' (Parentheses ours.)

(b) Where the efforts of counsel are not for the benefit of the estate as a whole, but are exerted solely for the selfish benefit of the party litigant. St. Louis Union Trust Co. v. Kaltenbach, supra; Trautz v. Lemp, supra; Scullin v. Mercantile-Commerce Bank & Trust Co., Mo.App., 234 S.W.2d 597, loc. cit. 604; In re Thomasson's Estate, 350 Mo. 1157, 171 S.W.2d 553. In the Kaltenbach case the court said, 186 S.W.2d loc. cit. 583: '* * * in some states, attorney's fees are also allowed for all defendants in such suits. We do not authorize such allowances to defendants except where their efforts resulted in real benefit to the estate. (Citing cases.) Here each defendant was contending for a construction under which he could obtain the whole estate for...